Today, EPIC filed a reply in its case against the Department of Homeland Security, EPIC v. DHS,10-1157. EPIC had previously filed a petition and motion for emergency stay, asking the court to suspend the use of the machines. EPIC argued that the use of body scanners for primary screening in U.S. airports violates several federal laws and the Fourth Amendment. In its reply to the government's motion, EPIC also cited the growing public opposition to the program, the decision of major airports not to use body scanners, as well as the agency's failure to adequately address Constitutional concerns.

! 1 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT THE ELECTRONIC PRIVACY INFORMATION ) CENTER, et al., ) ) Petitioners, ) ) v. ) No. 10-1157 ) JANET NAPOLITANO, in her official capacity ) as Secretary of the United States Department of ) Homeland Security, et al., ) ) Respondents. ) _________________________________________) REPLY TO OPPOSITION TO EMERGENCY MOTION FOR INJUNCTIVE RELIEF On July 2, 2010, petitioners filed an Emergency Motion for Stay of an Agency Rule, asking this court to enjoin respondents’ decision to make Full Body Scanners the primary means of airport screening in the United States. Respondents cannot escape the essential facts of this case: the agency decided to undertake, without public comment, a security screening program that involves the capture of the naked images of millions of individuals in violation of federal statutes and the U.S. Constitution. See Exhibit 1. Nor can respondents ignore the growing public opposition to its intrusive and controversial program.1 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 “Backlash Grows Against Full-body Scanners in Airports,” USA Today, July 13, 2010, at 1A (Exhibit 2). ! 2 Respondents do not dispute that air travelers are subject to the program; and documents produced by the agency, obtained by EPIC, establish the harm alleged. There is no real dispute about the likelihood of harm. Moreover, the violations of federal statutes and the Fourth Amendment continue as long as the agency is permitted to operate the program for primary screening. Indeed, the specific act that requires emergency relief is the agency’s decision to make body scanners the primary airport screening program in the United States, thereby subjecting millions of travelers to intrusive, invasive, suspicionless searches.2 I. EPIC’s Emergency Motion Should be Granted Respondents have sought from the outset of this program to avoid public scrutiny and judicial review. The agency simply presses forward, sends out press releases, posts a blog entry, and does as it wishes. In contrast, petitioners have pursued every opportunity to obtain relevant information, encourage public comment, and make clear the agency’s statutory and constitutional obligations. Most significantly, when petitioners became aware of the agency’s fundamental change in screening practices, it wrote immediately to the Secretary to urge a public rulemaking on the sweeping proposal. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 In fact, the agency is publicizing its aggressive deployment of these devices as this motion is being filed. “DHS: Secretary Napolitano Announces Additional Recovery Act-Funded Advanced Imaging Technology Deployments,” July 20, 2010, available at http://www.dhs.gov/ynews/releases/pr_1279642622060.shtm. ! 3 In its opposition, respondents blithely assert that the controversial screening procedure, once present in a few airports as part of a pilot project, can be suddenly deployed in all US airports for primary screening without triggering any obligations under the Administrative Procedures Act. Under this “boiling frog” theory of administrative authority, the agency could also require all air travelers to strip naked without triggering any regulatory or judicial scrutiny. Or perhaps as respondents intimate, Mot. Opp’n at 10-11, it could require all subway passengers and all individuals present at public meeting places to undergo full body scans. The agency’s efforts to evade judicial review are replete throughout its opposition. The agency reiterates its position that “there is no rule at issue here.” But the relevant portion of the APA states that a "rule:" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . . Obviously, the decision to make Full Body Scanners the primary airport screening technology is a substantial change in agency practice. It is the single most significant change in air traveler screening in the United States since the creation of the agency. Yet, while the agency has undertaken hundreds of rulemakings on everything from Aircraft Repair Station Security, Docket No. TSA-2004-17131, Nov. 12, 2009, to butane lighters and transportation worker identity documents, Docket Nos. TSA-2006-24191 (469 pages for the Final Rule), the agency ! 4 concludes that subjecting all air travelers to one of the most intrusive digital search techniques ever conceived does not trigger any §551(4) obligations, even after two petitions to conduct such a rulemaking have been presented to the agency. II. Respondents’ Fourth Amendment Analysis is Not Persuasive The TSA’s cursory discussion of the Fourth Amendment does nothing to rebut petitioner’s claim. Mot. Opp’n at 5-6. Petitioners do not dispute that the TSA’s screening protocols may be considered “administrative searches,” see, e.g., NTEU v. Von Raab, 489 U.S. 656 (1989), but that does not end the inquiry. The administrative search doctrine merely holds that the government may undertake certain searches without a warrant or individualized suspicion. Courts still must consider a variety of factors including (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs. U.S. v. Hartwell, 436 F.3d 174, 180 (3d Cir. 2006); U.S. v. Aukai, 497 F.3d 955, 962 (9th Cir. 2007). Most importantly, in cases reviewing airport screening procedures, courts have established a graduated standard. The searches upheld in Hartwell and Aukai, “were minimally intrusive. They were well-tailored to protect personal privacy, escalating in evasiveness only after a lower level of screening disclosed a reason to conduct a more probing search.” Hartwell, 436 F.3d at 180. Accord, Aukai, 497 ! 5 F.3d. at 962 (“Like the Third Circuit, we find these search procedures to be minimally intrusive.”). Courts have also expressed significant concern about strip searches, particularly of young children. As the Supreme Court stated recently, “The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.” Safford Unified School District v. Redding, 129 S. Ct . at 2633, 2643 (2009) (ruling impermissible a search that required a 13-year old girl to remove her outer clothes, pull her undergarments from her body, and expose her breasts and pelvic area to two school officials). The search in Safford took place in a high school and not an airport, but individualized suspicion was present. The Court concluded “the content of the suspicion failed to match the degree of intrusion.” 129 S. Ct. at 2642. As in Safford, young girls subject to Full Body Scans will be observed in a state of undress and will be similarly degraded. But unlike the search in Safford, body scanners rely on photographic equipment and make possible the permanent capture of the child’s naked image. The privacy claim here is even more compelling. Regarding the risk that such image capture could occur – the harm alleged here – respondents’ representations are refuted by the TSA’s own documents. Prior to this proceeding, petitioners undertook extensive FOIA litigation to obtain ! 6 documents detailing the capabilities of the Body Scanners, including operational requirements and technical specifications. (See Exhibit 3, Exhibit 4). As petitioners noted earlier, Emer. Mot. At 1-2, in the design specifications, the TSA required that the devices be able to store and transmit images. The TSA subsequently stated it “would” not use this capability in “operational settings,” but there is nothing that prevents the TSA from deploying the capability it required the vendors to provide. Letter from TSA Acting Administrator Gail D. Rossides, to Hon. Bennie G. Thompson, Feb. 24, 2010.3 In fact, in related litigation, respondent is currently withholding from petitioners more than 2,000 images captured by the devices in the possession of the agency. The agency does not dispute their existence. And stories have already appeared about the collection of photographic images of those subject to Full Body Scanners. “Airport worker given police warning for 'misusing' body scanner,” Guardian (UK), May 24, 2010 (“The police have issued a warning for harassment against an airport worker after he allegedly took a photo of a female colleague as she went through a full-body scanner at Heathrow airport.”) Respondents are well aware of the risk that images may be captured by operators with cell phones and digital cameras and have adopted procedures to reduce this risk. But of course, such !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 The TSA also states the devices installed in airports cannot store images and then explains “that all images are deleted from the system after they are reviewed by the remotely located operator.” Id. at 3. One wonders how something that is not stored can subsequently be deleted. ! 7 devices are easily concealed and it is almost unimaginable that some operators will not take advantage of the technology for their own ends. See, e.g., “LAX Tops Nation In Stolen, Missing Luggage Items,” CBS News, Nov. 7, 2008 (Two LAX employees “say there are organized rings of thieves, who identify valuables in your checked luggage by looking at the TSA x-ray screens, then communicate with baggage handlers by text or cell phone, telling them exactly what to look for.”) Respondents’ claim that the images may not be readily identified, at least at this point in time, does not diminish the significant privacy interest established when an individual knows that their naked image may be disclosed to others. As Judge Posner explained in North Western Memorial Hospital v. Ashcroft, 362 F.3d 923 (2004), regarding the limitations of removing identifying information from a medical record: Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. Id. at 929. Even as an administrative search in US airports after 9-11, it is not reasonable to subject all air travelers to devices that can capture and record images of them stripped naked as the initial screening procedure. ! 8 III. Video Voyeurism Act On further review of the agency’s conduct, petitioners believe that respondents are also in violation of the Video Voyeurism Prevention Act of 2004. That Act specifically prohibits the intentional “capture [of] an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, . . .” 18 U.S.C. §1801 (2010). The “private area of the individual” is defined as “the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual.” 18 U.S.C. §1801 (b)(3) These “private areas” are routinely captured by Full Body Scanners as numerous images demonstrate. See, e.g., Exhibit 1. The Act permits an exception for “any lawful law enforcement, correctional, or intelligence activity,” 18 U.S.C. §1801(c), but because a body scanner search is unlawful under the Fourth Amendment, as set out above, this exception would not apply. Significantly, the Act seeks to protect individuals whose private images may be captured in public places. See, H.R. Rep. No. 108-504, at 3 (2004). The Act explicitly defines “circumstances in which the individual has a reasonable expectation of privacy” as those “in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.” 18 U.S.C. §1801(b)(5)(B). Exhibit 1 makes clear that this standard is met. ! 9 IV. RFRA Claim The TSA contends that the Full Body Scanner does not substantially burden an individual’s exercise of religion. Mot. Opp’n 8-9. That view is not shared by many travelers with sincerely held religious beliefs. In fact, the Dubai International Airport, the largest airport in the Arab world, announced recently that it would not deploy Full Body Scanners. “Dubai Airport rejects full body scanners,” Dubai.com, July 17, 2010, (“Dubai Airport authorities have rejected the use of controversial full body scanners at the Emirates’ airports as they violate ethical principles relevant to Islamic culture.”) Thus TSA must fall back on its argument that the FBS program, even though it imposes a substantial burden on religious exercise, is necessary to further a compelling interest. Again, the agency makes a unilateral decision, without regard to public opinion or judicial review. V. The Body Scanner Program is Not Optional Respondents say that the Full Body Scanner program is not mandatory since travelers, the agency claims, have a pat-down search option. But the Schneier declaration and numerous air traveler complaints make clear that the option exists in press releases only. Emer. Motion at 4-5. Respondents present attachments depicting signage they say is widely available regarding the pat-down option, but respondents would not even permit petitioners to gather photographic evidence at airports that would demonstrate the inadequacy of the pat-down alternative. ! 10 Nonetheless, EPIC has obtained numerous statements from travelers who were not told of the pat-down option. Id. This is sufficient to establish petitioner’s claim. VI. Conclusion Petitioners do not object to the use of Full Body Scanners in all circumstances. In fact, body scanners may be a preferred technique for secondary screening where circumstances require a more careful examination of particular passengers. Scanners may also be preferable for passengers with prosthetics and other devices that routinely trigger magnometers. See Tobias W. Mock, “The TSA’s New X-Ray Vision: The Fourth Amendment Implications of ‘Body-Scan’ Searches at Domestic Airport Security Checkpoints,” 49 Santa Clara L.Rev. 213, 251 (2009) (“Though impermissible as a primary search, body-scans do have a constitutionally appropriate place in the airport security system.”) Petitioners object to respondents’ decision to make Full Body Scanners the primary means of screening in US airports. That decision disregarded the Fourth Amendment, as well as federal laws that ensure agency accountability and help safeguard privacy and religious freedom. Respondents have broad authority to undertake screening of travelers at airports in the United States, but it is not unbounded. Petitioners respectfully urge this court to grant the Emergency Motion for Stay of the Agency Rule. ! 11 Respectfully submitted, ___/s/Marc Rotenberg___________ MARC ROTENBERG JOHN VERDI Electronic Privacy Information Center 1718 Connecticut Ave. NW Suite 200 Washington, DC 20009 (202) 483-1140 Counsel for Petitioners Dated: July 20, 2010! 12 CERTIFICATE OF SERVICE The undersigned counsel certifies that on this 20th day of July, 2010, he caused one copy each of the foregoing Reply to Opposition to Emergency Motion for Injunctive Relief to be filed electronically with the Court via the Court's CM/ECF system, and also deposited four copies, to be delivered to the Clerk of the Court, in the U.S. Mail, postage pre-paid. Service will be made automatically upon the following CM/ECF participants: Douglas Letter John S. Koppel Attorneys, Appellate Staff Civil Division, Rm. 7264 United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 ___/s/Marc Rotenberg___________ MARC ROTENBERG JOHN VERDI Electronic Privacy Information Center 1718 Connecticut Ave. NW Suite 200 Washington, DC 20009 (202) 483-1140 Counsel for Petitioners Case: 10-1157 Document: 1256231 Filed: 07/20/2010 Page: 1Case: 10-1157 Document: 1256231 Filed: 07/20/2010 Page: 1Case: 10-1157 Document: 1256231 Filed: 07/20/2010 Page: 2

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